Paper 57
`Trials@uspto.gov
`Entered: January 6, 2016
`
`571–272–7822
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`AMAZON.COM, INC., HTC CORPORATION, ZTE (USA), INC.,
`PANTECH CO., LTD., PANTECH WIRELESS, INC.,
`LG ELECTRONICS, INC., LG ELECTRONICS U.S.A., INC., and
`DELL INC.,
`Petitioner,
`
`v.
`
`CELLULAR COMMUNICATIONS EQUIPMENT, LLC,
`Patent Owner.
`_______________
`
`Case IPR2014-01134
`Patent 7,941,174 B2
`_______________
`
`
`
`Before JENNIFER S. BISK, GREGG I. ANDERSON, and
`ROBERT J. WEINSCHENK, Administrative Patent Judges.
`
`WEINSCHENK, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
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`IPR2014-01134
`Patent 7,941,174 B2
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`
`I. INTRODUCTION
`Amazon.com, Inc., NEC Corporation of America, NEC Mobile
`Communications, Ltd.,1 HTC Corporation, ZTE (USA), Inc., Pantech Co.,
`Ltd., Pantech Wireless, Inc., LG Electronics, Inc., LG Electronics U.S.A.,
`Inc., and Dell Inc. (collectively, “Petitioner”) filed a Petition (Paper 10,
`“Pet.”) requesting an inter partes review of claims 1, 6, 9, 14, 18, and 19 of
`U.S. Patent No. 7,941,174 B2 (Ex. 1001, “the ’174 patent”). Cellular
`Communications Equipment, LLC (“Patent Owner”) filed a Preliminary
`Response (Paper 15, “Prelim. Resp.”) to the Petition. On January 15, 2015,
`we instituted an inter partes review of claims 1, 6, 9, 14, 18, and 19 (“the
`challenged claims”) of the ’174 patent on the following grounds:
`Claim(s)
`Statutory Basis
`Applied References(s)
`1, 6, 9, 14,
`35 U.S.C. § 102(e) U.S. Patent Pub. No. 2008/0151840
`18, and 19
`A1 (published June 26, 2008) (Ex.
`1005, “Baker”)
`35 U.S.C. § 103(a) U.S. Patent No. 7,689,239 B2 (issued
`Mar. 30, 2010) (Ex. 1004, “Reed”) and
`Baker
`35 U.S.C. § 103(a) Reed and U.S. Patent No. 7,321,780
`B2 (issued Jan. 22, 2008) (Ex. 1006,
`“Love”)
`
`1, 6, 9, 14,
`18, and 19
`
`1, 6, 9, 14,
`18, and 19
`
`Paper 16 (“Dec. on Inst.”), 17.
`After institution, Patent Owner filed a Response (Paper 33, “PO
`Resp.”) to the Petition, and Petitioner filed a redacted Reply (Paper 42, “Pet.
`Reply”) and a sealed Reply (Paper 43) to the Response. An oral hearing was
`
`
`1 NEC Mobile Communications, Ltd. was formerly known as NEC CASIO
`Mobile Communications, Ltd. Paper 14, 2. NEC Corporation of America
`and NEC Mobile Communications, Ltd. were dismissed on February 12,
`2015. Paper 21, 2–3.
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`held on August 26, 2015, and a transcript of the hearing is included in the
`record. Paper 56 (“Tr.”).
`We issue this Final Written Decision pursuant to 35 U.S.C. § 318(a)
`and 37 C.F.R. § 42.73. For the reasons set forth below, Petitioner has not
`shown by a preponderance of the evidence that claims 1, 6, 9, 14, 18, and 19
`of the ’174 patent are unpatentable.
`A.
`Related Proceedings
`The parties indicate that the ’174 patent is the subject of several cases
`in the United States District Court for the Eastern District of Texas. Pet. 1–
`2; Paper 13, 2–3.
`B.
`The ’174 Patent
`The ’174 patent relates to a radio communication system in which a
`subscriber station is assigned a plurality of codes for transmitting messages.
`Ex. 1001, col. 1, ll. 14–17. According to the ’174 patent, when radio
`transmission conditions deteriorate while a subscriber station is transmitting
`a message, a base station may request that the subscriber station increase the
`transmit power. Id. at col. 4, ll. 47–50. However, a subscriber station can
`only increase the transmit power up to a maximum value for that subscriber
`station. Id. at col. 4, ll. 50–52. As a result, if a subscriber station reaches the
`maximum transmit power during transmission of a message and
`subsequently receives a request from the base station to increase the transmit
`power, the subscriber station may have to abort transmission of the message
`before completion. Id. at col. 5, ll. 54–61.
`To address this problem, the ’174 patent describes a system in which
`the subscriber station maintains a transmit power difference or “power
`headroom.” Id. at col. 6, ll. 40–44. The transmit power difference is a
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`difference between the total transmit power for a plurality of codes assigned
`to the subscriber station at the start of a message transmission and the
`maximum transmit power for a plurality of codes assigned to the subscriber
`station. Id. at col. 6, ll. 42–47. For example, if the maximum transmit
`power for a subscriber station is 18 dBm and a transmit power difference of
`8 dBm is maintained by the subscriber station, the subscriber station has 10
`dBm of transmit power at the start of a message transmission. Id. at col. 6, l.
`55–col. 7, l. 3. As a result, if the base station requests an increase in transmit
`power for one of the codes during transmission, the subscriber station has 8
`dBm of headroom to increase the transmit power without having to abort the
`transmission. Id. at col. 6, ll. 40–49. The amount of the transmit power
`difference maintained by a subscriber station can be determined based on a
`variety of factors, including current interference, type of service, network
`strategy, and subscriber class. Id. at col. 7, ll. 29–30, col. 7, ll. 54–55, col. 8,
`ll. 8–9, col. 8, l. 13.
`C.
`Illustrative Claim
`Claims 1, 9, and 18 are independent. Claim 1 is reproduced below.
`1. A method for operating a radio communication
`system in which a subscriber station is assigned a plurality of
`codes for transmitting messages, comprising:
`determining a transmit power difference which is to be
`maintained by the subscriber station between on one hand a
`total maximum transmit power of the subscriber station for the
`codes and on another hand a total transmit power of the
`subscriber station for the codes at a start of a message
`transmission using a first one of the codes.
`Id. at col. 9, ll. 56–64.
`
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`
`II. ANALYSIS
`A.
`Identification of Real Parties in Interest
`The Petition identifies several real parties in interest. Pet. 1. Based
`on the information in the Petition and Preliminary Response, we did not
`identify any issues under 35 U.S.C. § 312(a)(2) or § 315(b), and we
`instituted an inter partes review. See Dec. on Inst. 2. Patent Owner argues
`in its Response that NEC Corporation and HTC America are real parties in
`interest that are not identified in the Petition. PO Resp. 41. According to
`Patent Owner, the Decision on Institution should be vacated because, under
`35 U.S.C. § 312(a)(2), a petition that does not identify all the real parties in
`interest cannot be considered. PO Resp. 42–44. For the reasons discussed
`below, we do not vacate the Decision on Institution.
`1.
`NEC Corporation
`The Petition identifies NEC Corporation of America (“NEC
`America”) and NEC Mobile Communications, Ltd.2 (“NEC Mobile”) as real
`parties in interest. Pet. 1. Patent Owner argues that the Petition also should
`have identified NEC Corporation as a real party in interest because NEC
`Corporation controlled the participation of NEC America and NEC Mobile
`in this case. PO Resp. 47–49. Specifically, Patent Owner argues that NEC
`Corporation executed a Settlement Agreement with Patent Owner that
`required NEC America and NEC Mobile to withdraw from this case. Id. at
`48. Patent Owner also argues that certain statements in the Motion to
`Terminate NEC America and NEC Mobile demonstrate that NEC
`
`
`2 NEC Mobile Communications, Ltd. was formerly known as NEC CASIO
`Mobile Communications, Ltd. Paper 14, 2.
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`Corporation controlled the participation of NEC America and NEC Mobile
`in this case. Id. at 47–48.
`Patent Owner and NEC Corporation executed the Settlement
`Agreement that allegedly demonstrates NEC Corporation’s control with
`respect to this case on November 17, 2014. Id. at 45. Because Patent Owner
`is a party to the Settlement Agreement, Patent Owner knew of its terms at
`that time. Id. Thus, Patent Owner could have raised the issue of whether
`NEC Corporation is a real party in interest when the Settlement Agreement
`was executed, but did not. Patent Owner, NEC America, and NEC Mobile
`filed the Motion to Terminate that allegedly demonstrates NEC
`Corporation’s control with respect to this case on February 5, 2015. Paper
`19. Because Patent Owner signed the Motion to Terminate, Patent Owner
`knew of the statements therein at that time. Id. at 7–8. Thus, Patent Owner
`also could have raised the issue of whether NEC Corporation is a real party
`in interest when the Motion to Terminate was filed, but did not.
`Patent Owner instead waited until after we granted the Motion to
`Terminate and dismissed NEC America and NEC Mobile from this case to
`argue that NEC Corporation had controlled their participation. Ex. 2002,
`19:18–25:18. The result of Patent Owner’s delay is that the parties whose
`conduct is in question no longer are involved in this case. Patent Owner
`previously assured the remaining parties and the Board that “NEC’s
`termination from the IPRs [would] have little, if any, impact on the
`remaining parties or the Board.” Paper 19, 5. Yet, now, Patent Owner seeks
`the extraordinary remedy of terminating this case in its entirety based on
`statements made in the documents that secured the dismissal of NEC
`America and NEC Mobile (documents which the remaining parties did not
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`sign). Given Patent Owner’s delay and previous assurances regarding the
`dismissal of NEC America and NEC Mobile, we decline to terminate this
`case with respect to the remaining parties. See 37 C.F.R. § 42.12.
`2.
`HTC America
`Patent Owner argues that HTC America should have been identified
`as a real party in interest in the Petition because of the relationship between
`HTC America and HTC Corporation. PO Resp. 51–58. Specifically, Patent
`Owner argues that: 1) HTC America is a wholly owned subsidiary of HTC
`Corporation (id. at 51); 2) HTC America and HTC Corporation often act
`jointly in other cases (id. at 51–52, 54); 3) HTC America and HTC
`Corporation share inside and outside counsel (id. at 52–53); 4) the power of
`attorney for HTC Corporation in IPR2014-01135 was signed on behalf of an
`HTC America employee (id. at 53); and 5) HTC America is identified as a
`real party in interest in most other petitions for inter partes review that
`identify HTC Corporation as a real party in interest (id. at 54–55). Patent
`Owner’s argument is not persuasive.
`Whether a party is a real party in interest is a “highly fact-dependent
`question” that is evaluated “on a case-by-case basis.” Office Patent Trial
`Practice Guide, 77 Fed. Reg. 48,756, 48,759–60 (Aug. 14, 2012). Some of
`the common considerations for determining whether a party is a real party in
`interest include whether the party funds, directs, or controls the petition or
`proceeding. Id. at 48,760. Here, Patent Owner does not identify any
`evidence indicating that HTC America funds, directs, controls, or otherwise
`is involved in this petition or proceeding. Patent Owner’s argument that
`HTC America and HTC Corporation acted jointly in other cases and that
`HTC America is named as a real party in interest in other cases does not
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`indicate that HTC America is a real party in interest in this case. Similarly,
`Patent Owner’s argument that an employee of HTC America is identified on
`the power of attorney for HTC Corporation in IPR2014-01135 does not
`indicate that HTC America is a real party in interest in this case.3 Finally,
`Patent Owner’s argument that HTC America and HTC Corporation share
`counsel does not indicate that HTC America funds, directs, controls, or
`otherwise is involved in this case.
`B.
`Claim Construction
`The claims of an unexpired patent are interpreted using the broadest
`reasonable interpretation in light of the specification of the patent in which
`they appear. 37 C.F.R. § 42.100(b); In re Cuozzo Speed Techs., LLC, 793
`F.3d 1268, 1278–79 (Fed. Cir. 2015). Claim terms generally are given their
`ordinary and customary meaning, as would be understood by one of ordinary
`skill in the art in the context of the specification. In re Translogic Tech.,
`Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). An applicant may provide a
`different definition of the term in the specification with reasonable clarity,
`deliberateness, and precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir.
`1994). In the absence of such a definition, limitations are not to be read into
`the claims from the specification. In re Van Geuns, 988 F.2d 1181, 1184
`(Fed. Cir. 1993).
`
`
`3 We also are not persuaded by Patent Owner’s argument because the power
`of attorney for HTC Corporation in IPR2014-01135 was signed by an
`employee of HTC Corporation (Pet. Reply 23–24; Ex. 2023, 24:20–25:6),
`and Petitioner represents that the reference to an HTC America employee
`was an oversight (Pet. Reply 24).
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`
`1.
`
`at a start of a message transmission using a first one of
`the codes
`Petitioner argues that the phrase “at a start of a message transmission
`using a first one of the codes” does not require express construction. Pet.
`Reply 3. Patent Owner argues that we should clarify that the phrase “at a
`start of a message transmission using a first one of the codes” modifies the
`phrase “a total transmit power of the subscriber station for the codes” in the
`challenged claims. PO Resp. 15–17. We determine that Patent Owner’s
`proposed interpretation is the broadest reasonable interpretation.
`
`Patent Owner’s proposed interpretation is supported by the claim
`language and the specification. In the challenged claims, the disputed phrase
`“at a start of a message transmission using a first one of the codes”
`immediately follows the phrase “a total transmit power of the subscriber
`station for the codes.” Ex. 1001, col. 9, ll. 62–64, col. 10, ll. 38–40, col. 12,
`ll. 8–10. Further, the specification explains that a “transmit power
`difference” is a difference between “a first and a second transmit power.”
`Id. at col. 2, ll. 41–43. According to the specification, the first transmit
`power is “the total maximum transmit power of the subscriber station for the
`plurality of codes” (id. at col. 2, ll. 45–47), and “[t]he second of the two
`transmit powers is the total transmit power of the subscriber station for the
`plurality of codes at the start of a message transmission using a first of the
`codes” (id. at col. 2, ll. 59–61 (emphasis added)). Thus, the specification
`indicates that the phrase “at a start of a message transmission using a first
`one of the codes” modifies the total transmit power. Other portions of the
`specification also support Patent Owner’s interpretation. See, e.g., id. at col.
`6, ll. 42–47 (“The transmit power difference . . . is required to exist between
`the total transmit power for the two codes DCH and EDCH at the start of
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`the transmission of an EDCH message and the maximum transmit power for
`the two codes DCH and EDCH.” (emphasis added)), col. 8, ll. 51–63.
`Therefore, we determine that, when given the broadest reasonable
`interpretation, the phrase “at a start of a message transmission using a first
`one of the codes” in the challenged claims modifies the phrase “a total
`transmit power of the subscriber station for the codes.”
`C.
`Anticipation of Claims 1, 6, 9, 14, 18, and 19 by Baker
`Petitioner argues that claims 1, 6, 9, 14, 18, and 19 are anticipated by
`Baker. Pet. 20. A claim is anticipated if each limitation of the claim is
`disclosed in a single prior art reference arranged as in the claim. Net
`MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir. 2008). We
`have considered the parties’ arguments and supporting evidence, and we
`determine that Petitioner has not shown by a preponderance of the evidence
`that claims 1, 6, 9, 14, 18, and 19 are anticipated by Baker.
`Independent claim 1 recites “determining a transmit power difference
`which is to be maintained by the subscriber station between on one hand a
`total maximum transmit power of the subscriber station for the codes and on
`another hand a total transmit power of the subscriber station for the codes at
`a start of a message transmission using a first one of the codes.” Ex. 1001,
`col. 9, ll. 56–64 (emphasis added). Independent claims 9 and 18 recite
`similar limitations, with independent claim 18 further reciting at least one
`processor that is programmed to determine the transmit power difference.
`Id. at col. 10, ll. 32–40, col. 12, ll. 1–10.
`Petitioner argues that Baker discloses a mobile station that transmits
`signals on two channels, DPDCH and DPCCH. Pet. 21; Ex. 1005 ¶ 23. The
`mobile station also transmits a positive (“ACK”) or negative (“NACK”)
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`acknowledgement using a third channel, HS-DPCCH. Pet. 21; Ex. 1005
`¶¶ 24–25. The transmit power for the signals on the DPDCH and DPCCH
`channels is reduced at the boundary of the frame or timeslot immediately
`preceding the ACK or NACK signal to ensure that there is enough transmit
`power available for the ACK or NACK signal. Pet. 22; Ex. 1005 ¶¶ 27, 30.
`Petitioner argues that the mobile station in Baker determines a transmit
`power difference, as recited in the challenged claims, by determining how
`much to reduce the transmit power for the DPDCH and DPCCH channels at
`the boundary of the frame or timeslot immediately preceding the ACK or
`NACK signal. Pet. 22–23. Figure 4 of Baker, as annotated by Petitioner, is
`reproduced below.
`
`
`Id. at 26. Figure 4 of Baker is a timing diagram showing the signals sent by
`the mobile station. Ex. 1005 ¶ 15. According to Petitioner, the transmit
`power difference is the difference between Pmax and the total transmit power
`for PC2 and PD2 at the boundary of the frame or timeslot immediately
`preceding the ACK or NACK signal. Pet. 23–26.
`Patent Owner argues that Petitioner has not shown sufficiently that the
`boundary of the frame or timeslot immediately preceding the ACK or
`NACK signal in Baker is the start of a message transmission. PO Resp. 35–
`36. Specifically, Patent Owner identifies evidence indicating that a message
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`transmission may include multiple frames and timeslots. Id.; Ex. 1015 ¶ 11;
`Ex. 2022 ¶ 87. Thus, according to Patent Owner, the boundary of the frame
`or timeslot immediately preceding the ACK or NACK signal in Baker is not
`necessarily the start of a message transmission. PO Resp. 35–36; Ex. 2022
`¶¶ 85–87. We agree with Patent Owner.
`Petitioner does not identify any express disclosure in Baker indicating
`that the boundary of the frame or timeslot immediately preceding the ACK
`or NACK signal is the start of a message transmission. Pet. 23–26; Pet.
`Reply 9–10; Tr. 11:3–10. Petitioner instead argues that “an EDCH message
`as described in the ’174 patent can be a single frame,” and, thus,
`“maintaining a transmit power difference at a start of a frame (i.e., at a start
`of an EDCH message transmission) must be equivalent to maintaining a
`transmit power difference at a start of a message.” Pet. Reply 9; Tr. 13:15–
`19. In other words, Petitioner argues that the start of a frame of an EDCH
`message inherently is the start of a message transmission.4
`Petitioner’s argument is not persuasive. First, Petitioner only argues
`that the mobile station in the ’174 patent transmits an EDCH message. Pet.
`Reply 9. Petitioner does not argue or identify evidence indicating that the
`mobile station in Baker transmits an EDCH message. Id. at 9–10; Tr. 12:6–
`
`
`4 Petitioner argued at the oral hearing that the term “message transmission”
`in the challenged claims refers to any frame in a message because the EDCH
`message described in the ’174 patent can be a single frame. Tr. 61:2–62:10.
`Petitioner’s argument is improper because it was presented for the first time
`at the oral hearing. See Office Patent Trial Practice Guide, 77 Fed. Reg.
`48,756, 48,768 (Aug. 14, 2012). Further, we are not persuaded that, because
`an EDCH message sometimes can be a single frame, the phrase “at a start of
`a message transmission” refers to the start of any frame in a message
`transmission.
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`16. Therefore, Petitioner’s argument that the start of a frame of an EDCH
`message inherently is the start of a message transmission does not
`demonstrate that the start of a frame in Baker inherently is the start of a
`message transmission. Tr. 12:6–16. Second, Petitioner does not identify
`evidence indicating that the start of a frame of an EDCH message
`necessarily is the start of a message transmission. Pet. Reply 9–10.
`Petitioner argues that an EDCH message can be a single frame, and, thus,
`the start of a frame of an EDCH message can be the start of a message
`transmission. Id. at 9; Ex. 1015 ¶ 11. However, the mere possibility that the
`start of a frame may correspond to the start of a message transmission is not
`sufficient to show that Baker anticipates the challenged claims. See In re
`Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (“Inherency . . . may not be
`established by probabilities or possibilities. The mere fact that a certain
`thing may result from a given set of circumstances is not sufficient.”).
`Further, Petitioner acknowledges that a message transmission in Baker may
`include more than one frame, and, as a result, the start of a frame in Baker
`does not necessarily correspond to the start of a message transmission. Tr.
`12:6–16, 16:19–19:13.
`Therefore, because Petitioner has not shown that Baker expressly or
`inherently discloses determining a transmit power difference between a
`maximum transmit power for the codes and a total transmit power for the
`codes at a start of a message transmission using a first one of the codes,
`Petitioner has not shown by a preponderance of the evidence that Baker
`anticipates claims 1, 6, 9, 14, 18, and 19.
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`D. Obviousness of Claims 1, 6, 9, 14, 18, and 19
`Petitioner argues that claims 1, 6, 9, 14, 18, and 19 would have been
`obvious over Reed and Baker and over Reed and Love. Pet. 27, 36. A claim
`is unpatentable as obvious under 35 U.S.C. § 103(a) if the differences
`between the claimed subject matter and the prior art are such that the subject
`matter as a whole would have been obvious at the time the invention was
`made to a person having ordinary skill in the art to which the subject matter
`pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The
`question of obviousness is resolved on the basis of underlying factual
`determinations, including: (1) the scope and content of the prior art; (2) any
`differences between the claimed subject matter and the prior art; (3) the level
`of ordinary skill in the art; and (4) any objective indicia of non-obviousness.
`Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966). We have considered
`the parties’ arguments and supporting evidence, and we determine that
`Petitioner has not shown by a preponderance of the evidence that claims 1,
`6, 9, 14, 18, and 19 would have been obvious over Reed and Baker or over
`Reed and Love.
`1.
`Reed and Baker
`Petitioner argues that Reed teaches a mobile station that determines its
`maximum transmission power, subtracts a headroom, and uses the remaining
`available transmit power to determine a maximum data rate for the data in its
`buffer. Pet. 32; Ex. 1004, col. 1, ll. 32–36. Petitioner argues that the
`headroom in Reed corresponds to the transmit power difference recited in
`the challenged claims. Pet. 30–32.
`Petitioner acknowledges that Reed does not teach expressly that the
`mobile station is assigned a plurality of codes for transmitting messages,
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`and, thus, also does not teach expressly a transmit power difference between
`a maximum transmit power for the codes and a total transmit power for the
`codes, as recited in the challenged claims. Id. at 28–29, 32–33; Ex. 1001,
`col. 9, ll. 56–64, col. 10, ll. 32–40, col. 12, ll. 1–10. Petitioner argues that:
`[A]lthough Reed does not explicitly disclose that a mobile
`station can be assigned a plurality of codes, Reed discloses that
`the mobile station can transmit two or more data streams or
`signals at the same time. Reed also discloses that the described
`communication system is a CDMA (Code Division Multiple
`Access) system in which signals are transmitted using codes.
`Baker explicitly discloses that “[a]s is customary with spread
`spectrum signaling several signals can be transmitted
`simultaneously each signal having its own signature or
`spreading code selected from a set of signatures.” Thus, Baker
`discloses that the plurality of data streams mentioned in Reed
`can each have its own code. Indeed, as described above, Baker
`discloses a subscriber station is assigned a plurality of codes.
`It would have been obvious to one skilled in the art to
`understand that the two or more data streams transmitted by the
`mobile station in Reed can be transmitted on different channels
`using different codes.
`Id. at 29 (internal citations omitted). In other words, Petitioner argues that
`Reed teaches a mobile station that can transmit two or more data streams,
`and it would have been obvious to one of ordinary skill in the art based on
`Baker that each data stream in Reed could be assigned a different code. Id.
`
`Patent Owner argues that, even assuming each data stream in Reed is
`assigned a different code, Petitioner still has not shown sufficiently that the
`challenged claims would have been obvious over Reed and Baker. PO Resp.
`39–41. The challenged claims recite determining a single transmit power
`difference for a plurality of codes assigned to the subscriber station. Id. at
`39; Ex. 1001, col. 9, ll. 56–64, col. 10, ll. 32–40, col. 12, ll. 1–10. Patent
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`Owner argues that, in contrast, Reed teaches determining a separate
`headroom for each data stream (and thus each code), not a single headroom
`for a plurality of codes. PO Resp. 39–41. We agree with Patent Owner that
`Petitioner has not shown by a preponderance of the evidence that the
`challenged claims would have been obvious over Reed and Baker.
`
`As discussed above, Petitioner argues that Reed teaches a mobile
`station that can transmit two or more data streams. Pet. 28–29 (citing Ex.
`1004, col. 4, ll. 14–21). The portion of Reed cited by Petitioner states that:
`If the mobile station desires to send two or more data streams
`(or hold voice and data connections at the same time), an
`addition [sic] degree of freedom allows the mobile station to
`deliberately increase the headroom on one of the data streams
`to de-prioritize that data stream. This would result in, for
`example, a longer time to transmit a text message from the
`mobile station but allow a digital picture to be transmitted at an
`optimum data rate.
`Ex. 1004, col. 4, ll. 14–21 (emphases added). This portion of Reed indicates
`that the headroom for one data stream can be adjusted independently of the
`headroom for the other data streams, and, thus, demonstrates that each data
`stream has its own headroom. Id.; Ex. 1003 ¶ 110; Ex. 2022 ¶¶ 100–101.
`As a result, assuming that each data stream in Reed is assigned a different
`code, Reed teaches determining a separate headroom for each code, not
`determining a single headroom for a plurality of codes. Ex. 1003 ¶ 110; Ex.
`2022 ¶¶ 101–104.
`Petitioner argues that Patent Owner’s interpretation of Reed is
`incorrect. Pet. Reply 12–14. Specifically, Petitioner argues that:
`The disclosure in Reed that Patent Owner refers to describes
`that one data stream can be de-prioritized for the benefit of
`another data stream (for example, the system can de-prioritize a
`text message transmission in order to reserve transmission
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`power for more data intensive transmissions such as digital
`pictures). (See Williams Decl. ¶¶ 13–14.) This provides “an
`addition[al] degree of freedom” because more power can be
`allocated to higher-priority transmissions by reducing power
`allocated to lower- priority transmissions. (See Williams Decl.
`¶¶ 13–14.) If Reed disclosed independently establishing
`headroom for each code, as Patent Owner contends, there
`would be no “degree of freedom” for this prioritization of
`transmissions because the reserved power on one stream could
`not be used for transmission on any other stream. (See
`Williams Decl. ¶¶ 13–14.)
`Pet. Reply 13. Petitioner’s argument is not persuasive. Petitioner’s
`argument cites exclusively to the second declaration of Dr. Tim Williams.
`Id. In his first declaration, Dr. Williams states that “[o]ne skilled in the art
`would understand that the data streams disclosed in Reed are assigned
`different codes, each code having its own headroom.” Ex. 1003 ¶ 110.
`Thus, Dr. Williams’ first declaration supports Patent Owner’s argument. In
`his second declaration, Dr. Williams takes the opposite position and states
`that one of ordinary skill in the art would understand that Reed teaches
`determining a single headroom for more than one code. Ex. 1015 ¶¶ 13–14.
`Because the statements in Dr. Williams’ second declaration cited by
`Petitioner are inconsistent with Dr. Williams’ first declaration, we determine
`that those statements lack credibility and we afford them little weight.
`Further, even if we afforded significant weight to the cited statements
`in Dr. Williams’ second declaration, Petitioner’s argument still is not
`persuasive. Petitioner argues that Reed teaches that one data stream can be
`deprioritized relative to another data stream. Pet. Reply 13. Petitioner
`argues that, to deprioritize a data stream, power must be reallocated from
`one data stream to another data stream, which allegedly cannot be
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`accomplished if each data stream has its own headroom.5 Id. However,
`Petitioner does not identify any portion of Reed that mentions reallocating
`power between data streams. Id. Rather, Reed teaches that, if the headroom
`for one data stream is increased, then the maximum data rate for that data
`stream is decreased. Ex. 1004, col. 2, ll. 13–19. Reed explains that, as a
`result, a particular data stream can be deprioritized by increasing the
`headroom for that data stream until its data rate is less than the data rate of
`the other data streams. Id. at col. 4, ll. 11–21. Thus, contrary to Petitioner’s
`argument, Reed teaches that a data stream can be deprioritized relative to
`other data streams, even when each data stream has its own headroom. Ex.
`2022 ¶ 101.
`Petitioner also argues that Reed teaches determining “headroom for
`the entire device, rather than just for an individual code the mobile station
`may be transmitting.” Pet. Reply 13–14 (citing Ex. 1004, col. 2, l. 56–col. 4,
`l. 13, Fig. 2). Petitioner’s argument is not persuasive. The portions of Reed
`cited by Petitioner refer to a first preferred embodiment that describes
`transmitting one data stream. Ex. 1004, col. 2, ll. 22–25, col. 2, ll. 56–57. In
`that embodiment, where the mobile station only transmits one data stream,
`the headroom for that data stream would correspond to the headroom for the
`entire device. However, the portions of Reed cited by Petitioner do not
`demonstrate that there is a single headroom for the entire device when the
`mobile station transmits two or more data streams. Also, Petitioner does not
`argue or identify evidence indicating that it would have been obvious to a
`
`5 Petitioner acknowledged at the oral hearing that this argument is premised
`on an assumption that the headroom in Reed is fixed. Tr. 25:1–27:12. That
`assumption is inconsistent with the express teaching in Reed that the
`headroom can be increased. Ex. 1004, col. 4, ll. 9–21.
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`person of ordinary skill in the art to modify Reed to use a single headroom
`when the mo